New law bans California employers from asking applicants their prior salary

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California employers can no longer ask job applicants about their prior salary and — if applicants ask — must give them a pay range for the job they are seeking, under a new state law that takes effect Jan. 1.

AB168, signed Thursday by Gov. Jerry Brown, applies to all public- and private-sector California employers of any size.

The goal is to narrow the gender wage gap. If a woman is paid less than a man doing the same job and a new employer bases her pay on her prior salary, gender discrimination can be perpetuated, the bill’s backers say.

Last year, the state passed a weaker law that said prior compensation, by itself, cannot justify any disparity in compensation.

The new bill goes further by prohibiting employers, “orally or in writing, personally or through an agent,” from asking about an applicant’s previous pay. However, if the applicant “voluntarily and without prompting” provides this information, the employer may use it “in determining the salary for that applicant.”

Delaware, Massachusetts and Oregon have passed similar laws that take effect later this year or next, said attorney Ben Ebbink of Fisher & Phillips in Sacramento. Philadelphia passed one that was supposed to take effect in May but is being challenged in court. New York City and San Francisco have similar ordinances that take effect Oct. 31 and July 1, respectively.

The San Francisco ordinance also prevents employers in the city from releasing a current or former employee’s salary without consent.

Most employers ask about an applicant’s previous salary in interviews or applications. Some online applications cannot be submitted until a prior salary is entered. Multistate employers will have to decide whether they want to remove that question from all applications or come up with different versions for use where it’s outlawed.

If more cities and states ban the salary question, at some point “employers will reach a tipping point” and stop asking anyone, Ebbink said. But we’re not there yet.

The California law applies to jobs within the state, but “I think there is an argument that it would apply” to employers soliciting Californians for jobs out of state, Ebbink said.

The bill, sponsored by Assemblywoman Susan Eggman, D-Stockton, had bipartisan support. Two of its co-authors are Republicans.

A long list of employers and groups representing them opposed it. The San Jose Unified School District said it needs to attract and retain educators and “in order to (do) so, it needs the ability to ask applicants about their salary history.” The Western States Trucking Association said it “effectively eliminates an employer’s ability to negotiate wage, as well as creates a new reason to sue.”

The bill was one of nine that Brown signed Thursday designed to help women and children. One of them, SB63, will let mothers and fathers working for employers with 20 to 49 employees take 12 weeks of unpaid, job-protected leave to care for a newborn or newly adopted child or foster child. Businesses with 50 or more workers already had to provide this. The leave can be taken in two-week increments.

Brown did not sign another workplace bill, AB1209, that would require employers with 500 or more employees in California to collect certain information on gender wage differentials and submit it to the secretary of state by July 1, 2020, and biennially thereafter. The secretary of state would publish it on a website. That bill was more controversial than the two workplace bills he did sign, Ebbink said. The fact that he did not sign it has led to speculation that he may veto it.

A bill that would give California public school teachers and other employees six weeks of paid maternity also still awaits his signature.